P. v. Swayne
Filed 5/28/13 P. v. Swayne CA1/2
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
CHELEIA
SWAYNE,
Defendant and Appellant.
A133761
(Alameda County
Super. Ct. No. CH49879A)
I. INTRODUCTION
Appellant
Cheleia Swayne was convicted by a jury of four counts arising out of a car
crash in which she was driving at high speed while under the influence of
alcohol, hit a curb, and slammed head-on into a gas station pole.
the front seat passenger was engulfed in flames. The two back seat passengers were rescued but
sustained serious injuries. Appellant contends the trial court erred in
admitting evidence of her responses to police questioning at the scene before
she was advised of her Miranda
rights, the court prejudicially misinstructed the jury on aiding and abetting
and on the definition of “driving,†and cumulative error. In addition, appellant argues, and respondent
concedes, a sentencing error. We will
reverse the sentence, remand for resentencing, and affirm the judgment in all
other respects.
II. FACTUAL AND PROCEDURAL
BACKGROUND
On
June 14, 2011, the
County District Attorney filed a consolidated information charging
appellant and Damarcus Thompson with gross vehicular manslaughter (Pen. Code,
§ 191.5, subd. (a)), with an allegation that Thompson fled the scene of
the crime (Veh. Code, § 20001, subd. (c)) (count 1), and driving under the
influence of alcohol and causing personal injury (Veh. Code, § 23153,
subd. (a)) (count 2). The information
also charged appellant with driving with a 0.08 percent blood-alcohol level and
causing injury (Veh. Code, § 23153, subd. (b)) (count 3) and driving when
her driving privilege was revoked (Veh. Code, § 14601.2, subd. (a)) (count
4). In count 5, the information also
charged Thompson with leaving the scene of an accident involving injury (Veh.
Code, § 20001, subd. (a)).
As
to count 2, the information alleged that appellant and Thompson caused bodily
injury and death to multiple victims (Veh. Code, § 23558), drove at an
excessive rate of speed (Veh. Code, § 23582), and caused great bodily
injury to La’Camii Ross, Everett Jackson, and Jalisha Harris, elevating the
offense to a serious felony (Pen. Code, § 1192.7, subd. (c), 12022.7,
subd. (a)). Count 3 contained these same
alleged enhancements against appellant.
The
matter went to trial before a jury, and the following evidence was adduced.
Before the Crash
On
August 14, 2009, Jalisha Harris and appellant spent the afternoon together
riding around in appellant’s boyfriend’s black Lexus. Appellant was driving and Harris sat in the
other front seat. When it got dark, they
drove to their friend Rob’s house in East Oakland. Harris, appellant, and Rob stood outside
talking on the driveway. At around 8:00
p.m., appellant bought a pint of Amsterdam gin and drank it with Harris for an
hour until it was empty. Appellant went
back to the liquor store and bought another pint bottle of Amsterdam gin which
she shared with Harris and one or two other people until it was empty. Harris felt “tipsy†and she testified that
appellant was in the same condition, i.e., intoxicated but able to speak and
walk normally.
La’Camii
Ross was dropped off at the house where Harris and appellant were standing in
the driveway. No alcohol was being
consumed at this point, and the group hung out for another hour. Around midnight, Harris asked appellant to
drop her off at the Alvingroom Apartments and to pick her up an hour
later.
When
Harris came outside to be picked up, she saw the Lexus in the parking lot with
the right rear passenger door open.
Everett Jackson was sitting in the middle of the back seat. The driver’s seat was pushed so far back that
no one could sit directly behind it in the back seat. Thompson sat in the driver’s seat with
appellant on his lap. Ross was in the
front passenger seat. Harris got in the
back seat on the right side behind Ross.
She could not tell if anyone put on a seatbelt. She did not put on her seatbelt. Harris knew Jackson because she had dated
him. She knew Thompson by his street name,
“Devil.â€
As
soon as she got in the car, it took off.
Harris did not have a clear recollection of whose hands were on the
steering wheel and she did not see whose feet were on the pedals. She recalled testifying previously that she
saw appellant’s hands on the wheel. She
explained that she was not changing her story at trial, but that she had
suffered memory loss and memory changes.
Although
Harris felt the effects of intoxication, she had memories of the drive. She remembers leaving the driveway of the
apartment complex, turning left on Macarthur Boulevard, and going fast. The car was traveling at “freeway speed.†She did not remember any stops and did not
remember if she was awake during the drive.
The last thing she remembered was seeing the Quik Stop on Macarthur
Boulevard in San Leandro.
Everett
Jackson had been hanging out at his grandmother’s house on 100th Avenue and
Macarthur Boulevard on the evening of August 14. He was with a group of people including his
cousin Damarcus Thompson. They were
drinking Amsterdam gin out of two or three pint-sized bottles.
Some
time before midnight, the group congregated outside a nearby bar called the
Sports Page. Before arriving at the
Sports Page, the group bought more alcohol.
Jackson saw Thompson drinking alcohol and observed that Thompson was
“sort of†experiencing the effects.
After the bar closed at 2:00 a.m., appellant drove up in a black Lexus
with passengers Harris and Ross.
Appellant got out of the car.
Jackson got into the driver’s side back seat. Thompson sat in the driver’s seat and
appellant sat on his lap. Jackson did
not have his seatbelt on and he did not see Thompson or appellant put on the
seatbelt, turn on the car, steer, or operate the pedals. The last thing Jackson remembered was seeing
the Quik Stop in San Leandro.
The Crash
and the Aftermath
On
August 16, 2009, just after 3:00 in the morning, Shirley McGee was at home
watching television when she heard a loud smash outside. She lived in an apartment on the corner of
Grand Avenue and Joaquin Street in San Leandro.
She went outside onto the porch and saw a car that had crashed into a
pole at the gas station across the street.
There was a lot of smoke in the car.
McGee ran back into the apartment, grabbed her phone, and went back out
to the porch. She called 911. From across the street, she could hear people
inside the car crying loudly for help.
After
calling 911, McGee saw a man walk out of the smoke of the crash site. He ran across the street towards McGee and
proceeded towards the freeway. The man
appeared to be hurt; he walked with a limp.
McGee
called 911 two more times because the situation inside the car was getting
worse—she could see fire—and help had not yet arrived.
At
3:19 a.m., Officer Michael Benz of the San Leandro Police Department was
dispatched to the crash site. He arrived
at the Coast Gas Station in the 1400 block of Grand Avenue in his marked police
vehicle with the lights and siren activated.
Before he parked, he could see a black male crossing the street from
east to west, about 50 feet away.
Officer Benz grabbed a fire extinguisher from his patrol car and ran
towards the burning vehicle. He saw
appellant sitting on a low retaining wall 20 to 30 feet away. She called out, “I’m over here, I’m over
here.†Officer Benz asked appellant if
she was okay and then asked if she was the driver. Appellant said she thought her leg was broken
and acknowledged that she was the driver.
Officer
Benz heard a female voice from the burning vehicle yelling for help and saying
she could not get out of the car.
Officer Benz found Jalisha Harris in the back seat, face down. Her lower torso, waist, and legs were in the
car; her upper torso, arms, and head were outside the car on the ground. Not knowing the extent of Harris’ injuries or
if she was pinned inside the car, Officer Benz decided to try to put out the fire
first. The majority of the fire was in
the front passenger area of the car. The
fire extinguisher was ineffective. Two
other officers on the scene were also trying to put out the fire. Officer Benz could see someone in the front
passenger seat. The officers pulled
Harris from the car and set her down a safe distance from the car. They were unable to reach the front seat
passenger because the fire was too intense.
Officer Benz saw what appeared to be a pair of jeans on the rear
floorboard. He also noticed that the gas
pedal was pushed up to the driver’s seat; it was significantly closer to the
driver’s seat.
Officer
Liaquat Khan was on duty in north San Leandro when he heard Officer Benz’s
initial reports from the scene of the car crash. He decided to respond to the scene when he
heard Officer Benz’s voice become more excited and that the vehicle involved
was fully engulfed in flames. When
Officer Khan arrived, there were three patrol cars present, but no fire or
medical personnel. The other officers
were attending to Harris and appellant.
Officer Khan approached to within five feet of the car on the driver’s
side and noted that the driver’s door and left rear door were open all the way
and that there was a person in the right front passenger seat. The fire was inside the car’s passenger and
engine compartments, and flames were shooting up about 10 feet into the
air. Officer Khan heard moaning from the
back seat and saw what initially appeared to be a pair of jeans, but turned out
to be a person. Officer Khan could not
get close to the person because of the flames, but kept trying, unsuccessfully,
to put out the fire.
When
the fire department arrived, Officer Khan told one of the firefighters that
someone was alive in the back of the car.
The fire department put out the fire and rescued a male later identified
as Everett Jackson from the back seat.
After
the fire was out, Officer Benz turned his attention back to appellant, who was
still sitting on the retaining wall. She
asked repeatedly if the other people in the car were okay. Officer Benz noted that she had red watery
eyes, slurred speech with deliberate pronunciation, and the odor of alcohol
coming from her person. Appellant
appeared disheveled and her attitude was indifferent.
Officer
Benz asked appellant a number of standard questions from a form and recorded
her answers in writing. She did not
answer most of the questions, but said she had been driving from Oakland to San
Leandro. After speaking with appellant,
Officer Benz arrested her for driving under the influence of alcohol and
causing injury. Appellant was then
transported to the hospital.
Codefendant
Damarcus Thompson was not located at the scene of the accident.
Everett
Jackson was taken to Eden Hospital.
Officer Benz saw him there in the trauma room. One of his legs was in a splint; he was
hooked up to a ventilator; and he was unconscious.
Jackson
had a broken leg and was unconscious for two weeks. He was then in rehabilitation care for six
weeks. Ever since the accident, he has
suffered memory problems and seizures.
Apparently, he is no longer the person he was before the accident.
Officer
Khan interviewed Jalisha Harris at the hospital and wrote down her
statement: “I went to a club somewhere
in Oakland with my cousin [appellant]. I
don’t remember how long we were at the club.
While at the club, I took a couple of shots of alcohol. I know [appellant] was drinking too, but I
don’t know what or how much. After a
while at the club, we, my cousin and two other men, left the bar in
[appellant’s] car. I don’t know who the
other two males were. [Appellant] was
driving her boyfriend’s black Lexus four-door.
I was in the left rear passenger seat without my sealtbelt on. [Appellant] was driving home to San Leandro,
but I don’t know where she lives. I fell
asleep at some point during our ride home.
I woke after [appellant] crashed the car. I don’t know who [sic] or how I got out of
the car after the crash. I was injured
as a result of the crash. My entire body
including my neck hurts. Also have some cuts to my body as a result of
the crash.†Harris was physically unable
to sign the statement.
Harris
testified that she remembered seeing smoke and the paramedic standing over her
as she was hanging out of the car door.
Her neck hurt and she could not move.
Harris woke up again in the intensive care unit of the hospital. She had suffered a broken neck and fractured
her hand. She had to wear a metal halo
screwed into her skull for three months.
She had residual scars and long-term problems with her back, leaving her
unable to work.
La’Camii
Ross, the front seat passenger, died at the scene. Dr. Paul Herrmann performed an autopsy and
testified at trial. Ross’s “body was
severely burned, charred on most of the skin surface,†including most of her
face, her teeth, and her ears. The
charring continued on her neck, chest, abdomen, legs, arms, and hands. Dr. Herrmann noted a fractured ankle and fractured
ribs, one of which lacerated her left lung.
Ross had no serious head injuries, leading Dr. Herrmann to opine that
Ross was alive when the fire started.
She probably died within seconds by inhaling hot gas. The cause of death was blunt trauma and
extensive thermal burns.
Jonathan
Knapp, the director of the Valley Toxicology Forensic Laboratory, testified as
an expert in impairment.
occur when a person’s blood alcohol content is between 0.03 and 0.06
percent. At a level of 0.08 percent, an
individual’s visual focus and peripheral vision is detrimentally affected. At 0.15 percent, most people will lose all
peripheral vision.
On
August 21, 2009, an employee of Valley Toxicology Forensic Laboratory examined
a sample of appellant’s blood from the day of the incident. The result was a blood alcohol content of
0.12 percent. On October 18, 2010, Knapp
conducted the test again because the employee who performed the first test was
no longer working for the laboratory.
The result was a blood alcohol content of 0.10 percent. Knapp testified that a reason for the lower
blood alcohol level was the year-long period between tests and the volatile
nature of blood specimens.
Officer
Joe Molettieri, a traffic investigator for the San Leandro Police Department,
concluded that the car first hit the curb of the street, traveled 40 to 45
feet, and then hit the pole. The front
of the car hit the square cement block holding up the pole. There were no skid marks, which would have
been evidence of braking.
Scott
Sorensen, formerly a traffic division investigator for the Hayward Police
Department, was trained in accident investigation and reconstruction. Sorensen performed a crush analysis and
determined that the speed of the Lexus when it hit the pole was between 44.25
and 50.46 miles per hour. The speed
limit on Grand Avenue is 35 miles per hour, and many of the posted speed limit
signs along the route traveled by the Lexus were 30 miles per hour. Sorensen’s calculations were based solely on
the crush damage to the car, and established the minimum speed the vehicle
could have been traveling at the time of impact. According to Sorensen, other factors such as
flying debris, which did not figure into the crush analysis, indicated that the
car’s speed was actually higher.
Appellant
is five feet eight inches tall. Thompson
is five feet five and a half inches tall with shoes on; he is five feet four
inches without shoes. The distance from
the Sports Page bar to the crash site is approximately 4.2 miles. There were at least seven controlled
intersections along the driving route.
Detective
Brian Anthony of the Albany Police Department, formerly a patrol officer,
testified that, on June 14, 2008, at around 2:26 a.m., he performed a traffic
stop on a Dodge Intrepid driven by appellant.
During the stop, he issued appellant a written suspension and revocation
order and orally informed appellant that her driving privilege was suspended. The suspension was based on a preliminary
alcohol screening device which showed the presence of alcohol.
Both
defendants were convicted by the jury as charged. The court sentenced appellant to 15 years,
four months in state prison. Thompson was sentenced to 20 years, 10
months.
Appellant
filed a timely notice of appeal.
DISCUSSION
A.
Responses to Questioning at the Scene.
Appellant
contends that the trial court erred in denying her motion to exclude evidence
of her responses to police questioning prior to being advised of her
accident. She argues that as soon as
Officer Benz suspected that she was driving under the influence of alcohol, she
was not free to leave and should have been advised of her rights before the
officer began asking her the list of standard investigative questions.
1. Factual
background.
Appellant
moved in limine to exclude statements she made to Officer Benz at the crash
scene.
Officer
Benz testified at a pretrial Evidence Code section 402 hearing that, at around
3:19 a.m. on August 15, 2009, he was dispatched to the scene of a vehicle
accident involving injuries near 1401 Grand Avenue in San Leandro. When he pulled up, he noticed a black male
walking away from the area and saw a car that had crashed into a pole and was
on fire. He approached the vehicle and
saw appellant sitting 20 to 30 feet away on a low retaining wall. Appellant was yelling, “I’m over here, I’m
over here.†Officer Benz asked if she
was the driver of the vehicle and appellant said, “Yes, I’m over here.â€
After
assisting with the car and the people trapped inside, Officer Benz returned to
where appellant was still sitting on the retaining wall. Officer Benz asked appellant her name and
requested her driver’s license.
Appellant did not respond. She
repeatedly said her leg was broken and asked about medical assistance. She did not give her name to the
officer.
Officer
Benz testified that he did not place appellant in handcuffs and she was not in
custody or under arrest. While speaking
with her, Officer Benz noticed “a moderate smell of alcohol coming from her
person,†and saw that her eyes were red and watery. Her speech was deliberate, and rambling at
times. Officer Benz suspected that
appellant was under the influence of alcohol and he proceeded to ask her the
standard questions he uses in every DUI investigation.
Officer
Benz asked her where she had been driving, and appellant responded that she was
driving from Oakland to San Leandro.
Appellant did not answer his questions about any mechanical problems
with the car or whether she had any medical conditions. Appellant kept saying her leg was broken, and
the officer repeated that an ambulance was on the way. Appellant did not answer when asked if she
knew where she was or how much she had had to eat or drink. Officer Benz did not ask appellant to perform
field sobriety tests because of her injuries.
The
trial court denied appellant’s motion because it found no Miranda violation and ruled that the statements were admissible.
2. Legal
Principles.
“The
prophylactic requirements of Miranda [
Amendment right against self-incrimination under ‘inherently coercive’
circumstances, a suspect may not be subjected to an interrogation
in official ‘custody’ unless he has previously been
advised of, and has knowingly and intelligently waived, his rights to silence,
to the presence of an attorney, and to appointed counsel if he is
indigent. . . . Statements obtained in violation of
admissible to establish his guilt.†(
271, overruled on other grounds by People
v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) “Consequently, unwarned statements that are
otherwise voluntary within the meaning of the Fifth Amendment must nevertheless
be excluded from evidence under Miranda.†(Oregon
v. Elstad (1985) 470 U.S. 298, 307.)
“
there has been such a restriction on a person’s freedom as to render him ‘in
custody.’ †(Oregon v. Mathiason (1977) 429 U.S. 492, 495.) Whether an individual is “in custody†for
and, where no formal arrest has taken place, is resolved by asking whether the
circumstances “created a coercive atmosphere such that a reasonable person
would have experienced a restraint tantamount to an arrest.†(People
v. Aguilera (1996) 51 Cal.App.4th 1151, 1162.) “Two discrete inquiries are essential to the
determination: first, what were the circumstances surrounding the
interrogation; and second, given those circumstances, would a reasonable person
have felt he or she was not at liberty to terminate the interrogation and
leave.†(Thompson v. Keohane (1995) 516 U.S. 99, 112, fn. omitted.) Factors to consider in deciding the custody
issue include the site of the interrogation, whether objective indicia of
arrest were present, and the length and form of the questioning. (People
v. Boyer, supra, 48 Cal.3d at p. 272.)
The
United States Supreme Court has made clear that “the initial determination of
custody depends on the objective circumstances of the interrogation, not on the
subjective views harbored by either the interrogating officers or the person
being questioned.†(Stansbury v. California (1994) 511 U.S. 318, 323.) “It is well settled, then, that a police
officer’s subjective view that the individual under questioning is a suspect,
if undisclosed, does not bear upon the question whether the individual is in
custody for purposes of Miranda. [Citation.] . . . Save
as they are communicated or otherwise manifested to the person being
questioned, an officer’s evolving but unarticulated suspicions do not affect
the objective circumstances of an interrogation or interview, and thus cannot
affect the Miranda custody inquiry.†(
Determining
whether a defendant was in custody under Miranda
is a mixed question of law and fact. (
401.) “When reviewing a trial court’s
determination that a defendant did not undergo custodial interrogation, an
appellate court must ‘apply a deferential substantial evidence standard’
[citation] to the trial court’s factual findings regarding the circumstances
surrounding the interrogation, and it must independently decide whether, given
those circumstances, ‘a reasonable person in [the] defendant’s position would
have felt free to end the questioning and leave’ [citation].†(People
v. Leonard (2007) 40 Cal.4th 1370, 1400.)
3. Analysis.
Appellant
argues that, when Officer Benz “suspected appellant was under the influence and
began asking her the list of standard investigative questions,†she was
subjected to a custodial interrogation without first being advised of her
In
Berkemer v. McCarty (1984) 468 U.S.
420, a seminal case cited by both parties, the Supreme Court concluded that an
officer’s roadside questioning of a motorist detained pursuant to a routine
traffic stop did not constitute custodial interrogation for
at pp. 435-440.) The court reasoned that
the circumstances did not sufficiently resemble custody because the questioning
was brief and took place in public. (
interrogation, “which frequently is prolonged, and in which the detainee often
is aware that questioning will continue until he provides his interrogators the
answers they seek.†(
In
another analogous case, People v. Mosley
(1999) 73 Cal.App.4th 1081 (Mosley),
our colleagues in the Second District held that the defendant’s statements,
made to the police while he was being treated in an ambulance for a gunshot
wound following a drive-by shooting, were admissible despite his not having
received the Miranda
advisements. (Id. at pp. 1085, 1090-1091.)
The officer asked the defendant what happened; the defendant’s answers
implicated him in the shooting. (
custody when the officer questioned him, the court reasoned, “[a]ny restraint
of defendant’s freedom of action was caused by the need to treat his gunshot
wound, which was still bleeding and was actively being treated during the
interview. He had not been placed under
arrest because the police did not know what had happened that caused him to be
shot. . . . We also note
that the questioning was not accusatory or threatening, that defendant was not
handcuffed, that no guns were drawn, and that defendant was about to be
transported to a hospital and not to a police station or jail.†(Id.
at p. 1091.)
Here,
appellant was not in custody for Miranda
purposes when Officer Benz questioned her at the scene prior to arresting
her. She herself initiated contact with
the officer, calling to him, “I’m over here, I’m over here.†The questioning was brief and took place in
public, in view of passersby, at the scene of the collision. Officer Benz was the only one questioning
appellant, and the questions were non-accusatory and open-ended. He asked her, for example, if she was the
driver of the car, if she knew where she was, and if she had had anything to
eat or drink. She was not handcuffed and
was not required to perform field sobriety tests.
Appellant
contends that she was not free to leave, i.e., in custody, both because of her
injuries and because Officer Benz suspected that she had been driving under the
influence of alcohol. We reject this argument. Any restraint on appellant’s freedom of
movement was caused by her injuries in the car crash, not by police
action. (See Mosley, supra, 73
Cal.App.4th at p. 1091.) Moreover, the
officer’s suspicion that appellant had been drinking did not transform the
investigative questioning into a custodial interrogation. Custody “depends on the objective
circumstances of the interrogation, not on the subjective views harbored by
either the interrogating officers or the person being questioned,†and thus Officer
Benz’s suspicion is not pertinent to the issue of custody under Miranda. (Stansbury
v. California, supra, 511 U.S. at
p. 323.)
Under
the totality of the circumstances, a reasonable person in appellant’s position
would not have believed herself to be in custody when Officer Benz questioned
her. Accordingly, the trial court did
not err in admitting the evidence.
B. The Aiding and Abetting Instruction.
Appellant
contends that the trial court erred in instructing the jury with the
prosecution’s special instruction that it did not have to unanimously agree
upon, or individually determine, whether appellant was the direct perpetrator
or an aider and abettor. The instruction
was improper, according to appellant, because it “deprive[d] appellant of the
jury’s unanimous verdict beyond a reasonable doubt on every element of the
crimes†and relieved the individual jurors “of actually making this factual
decision on an element of the crimes charged.â€
Counsel
for both codefendants objected to the aiding and abetting instructions
requested by the prosecution, claiming they were unsupported by the
evidence. The trial court overruled the
objections and instructed the jury as follows:
“A
person may be guilty of a crime in two ways:
“One,
he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted the
perpetrator who directly committed the crime.
A person is guilty of a crime whether he or she committed it personally
or aided and abetted the perpetrator.
Under some specific circumstances, if the evidence establishes aiding
and abetting of one crime, a person may also be found guilty of other crimes
that occurred during the commission of the first crime.
“To
prove that the defendant is guilty of a crime based on aiding and abetting that
crime, the People must prove that:
“One,
the perpetrator committed the crime; two, defendant knew that the perpetrator
intended to commit the crime; three, before or during the commission of the crime,
the defendant intended to aid and abet the perpetrator in committing the crime;
and, four, the defendant’s words or conduct did, in fact, aid and abet the
perpetrator’s commission of the crime.
“Someone
aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose
and he or she specifically intends to, and does in fact, aid, facilitate,
promote, encourage, or instigate the perpetrator’s commission of that crime.
“If
all of these requirements are proved, the defendant does not need to actually
have been present when the crime was committed to be guilty as an aider and
abettor.
“If
you conclude that defendant was present at the scene of the crime or failed to
prevent the crime, you may consider that fact in determining whether the defendant
was an aider and abettor. However, the
fact that a person is present at the scene of a crime or fails to prevent the
crime does not, by itself, make him or her an aider and abettor.â€
The
prosecutor also requested, and the trial court provided, a supplemental special
instruction on aiding and abetting:
“Those who aid and abet a crime and those who directly perpetrate the
crime are principals and equally guilty of the commission of that crime. You need not unanimously agree, nor
individually determine, whether a defendant is an aider and abettor or a direct
perpetrator. The individual jurors
themselves need not choose among the theories, so long as each is convinced of
guilt. There may be a reasonable doubt
that the defendant was the direct perpetrator, and a similar doubt that he or
she was the aider and abettor, but no such doubt that he or she was one or the
other.â€
Appellant
contends that instructing the jury that it did not have to unanimously
determine whether she was the direct perpetrator or an aider and abettor
violated her due process rights.
Specifically, she argues that this instruction deprived her of her
federal constitutional rights to due process and a fair trial and her state
constitutional right to a unanimous jury verdict based on facts found true
beyond a reasonable doubt by each juror by lowering the prosecution’s burden of
proof on each element.
On
appeal, we apply the de novo standard of review to claims of instructional
error. (People v. Manriquez (2005) 37 Cal.4th 547, 581;
218.) “Review of the adequacy of
instructions is based on whether the trial court ‘fully and fairly instructed
on the applicable law.’ [Citation.] ‘ “In determining whether error has been
committed in giving or not giving jury instructions, we must consider the
instructions as a whole . . . [and] assume that the jurors are
intelligent persons and capable of understanding and correlating all jury
instructions which are given.â€
[Citation.]’ [Citation.] ‘Instructions should be interpreted, if
possible, so as to support the judgment rather than defeat it if they are
reasonably susceptible to such interpretations.’ [Citation.]â€
(People v. Ramos (2008) 163
Cal.App.4th 1082, 1088.)
In
People v. Ortiz (2012) 208
Cal.App.4th 1354, our colleagues in the Fourth District recently summarized the
applicable law: “In a criminal case, a
defendant has the constitutional right to a unanimous jury verdict. (Cal. Const., art. I, § 16;
1132 (Russo).) Furthermore, ‘the jury must agree unanimously
the defendant is guilty of a specific crime.’
(Russo, at p. 1132.) ‘Therefore, cases have long held that when
the evidence suggests more than one discrete crime, either the prosecution must
elect among the crimes or the court must require the jury to agree on the same
[¶] This requirement of unanimity as to the
criminal act “is intended to eliminate the danger that the defendant will be
convicted even though there is no single offense which all the jurors agree the
defendant committed.†’ (
only a single discrete crime but leaves room for disagreement as to exactly how
that crime was committed or what the defendant’s precise role was, the jury
need not unanimously agree on the basis or, as the cases often put it, the
“theory†whereby the defendant is guilty.’
(Russo, supra, 25 Cal.4th at p. 1132.)
‘It is settled that as long as each juror is convinced beyond a
reasonable doubt that defendant is guilty of [a crime] as that offense is
defined by statute, it need not decide unanimously by which theory he is
guilty.’ (
903, 918 [(Santamaria)].) Russo
discussed
multiple, discrete crimes requiring a unanimity
instruction and when there is only one discrete crime based on multiple
theories not requiring a unanimity instruction. (Russo,
at pp. 1132-1133.) ‘[T]ypical examples
include the rule that, to convict a defendant of first degree murder, the jury
must unanimously agree on guilt of a specific murder but need not agree on a
theory of premeditation or felony murder [citation], and the rule that the jury
need not agree on whether the defendant was guilty as the direct perpetrator or
as an aider and abettor as long
as it agreed on a specific crime [citation].’
(Id. at p. 1133.) Furthermore, ‘[n]ot only is there no
individual jurors themselves need not choose among the theories, so long as
each is convinced of guilt.
Sometimes, . . . the jury simply cannot decide beyond a
reasonable doubt exactly who did what.
There may be a reasonable doubt that the defendant was the direct
perpetrator, and a similar doubt that he was the aider
and abettor, but no such doubt that he was one or the
other.’ (Santamaria, at p. 919, [italics omitted].)†(People v. Ortiz, supra,
208 Cal.App.4th at pp. 1374-1375; see also People
v. McCoy (2001) 25 Cal.4th 1111, 1120 [“It is often an oversimplification
to describe one person as the actual perpetrator and the other as the aider and
abettor. When two or more persons commit
a crime together, both may act in part as the actual perpetrator
the other, who also acts in part as an actual perpetrator. . . .
In another shooting case, one person might lure the victim into a trap while
another fires the gun; in a stabbing case, one person might restrain the victim
while the other does the stabbing. In
either case, both participants would be direct perpetrators as well as aiders
and abettors of the other. The aider and
abettor doctrine merely makes aiders and abettors liable for their accomplices’
actions as well as their own. It
obviates the necessity to decide who was the aider and abettor and who the
direct perpetrator or to what extent each played which role.â€].)
An
instruction similar to the one given in this case was upheld as proper in
307 (Culuko), in which the defendant,
Culuko, the child’s mother, was convicted of second degree murder, fatal
assault on a child under the age of 8, and felony child abuse, under facts from
which the jury could conclude that either Culuko or her cohabiting boyfriend
struck the fatal blow to the child. (
instruction impermissibly permitted the jury to find her guilty of murder
without a finding of malice. The court
rejected the contention that it was error to give the instruction, pointing out
that in fact the jury did have to find that either Culuko or her boyfriend
harbored malice, the “obvious candidate†being the one who delivered the fatal
blow. The jury simply did not have to determine
whether that defendant was Culuko or the boyfriend. (Id.
at p. 323.)
The
Culuko court also noted that the
instruction was a correct statement of law, deriving from cases holding that
the jury need not agree unanimously on whether the defendant was the
perpetrator or the aider and abettor.
Regarding Culuko’s challenge to the portion of the instruction stating
that each individual juror did not have to decide whether any given defendant
was the perpetrator or the aider and abettor, the court noted that this aspect
of the instruction was nearly a direct quote from the Supreme Court’s opinion
in Santamaria, supra, 8 Cal.4th at page 919:
“ ‘Not only is there no unanimity requirement as to the theory of
guilt, the individual jurors themselves need not choose among the theories, so
long as each is convinced of guilt.
Sometimes, as probably occurred here, the jury simply cannot decide
beyond a reasonable doubt exactly who did what.
There may be a reasonable doubt that the defendant was the direct
perpetrator, and a similar doubt that he was the aider and abettor, but no such
doubt that he was one or the other.’ The
court concluded it would be ‘absurd . . . to let the defendant
go free because each individual juror had a reasonable doubt as to his exact
role.’ (Id., at p. 920, fn. 8; accord, People
v. Garrison [(1989)] 47 Cal.3d [746,] 781-782.)†(Culuko,
supra, 78 Cal.App.4th at pp.
323-324.)
Appellant’s
argument that the special instruction allowed the jury to return a guilty
verdict without finding unanimously that she was guilty beyond a reasonable
doubt is without merit. The jury reached
a unanimous verdict that appellant was guilty of gross vehicular manslaughter
while intoxicated (count 1), driving under the influence causing injury (count
2), driving with 0.08 percent blood alcohol causing injury (count 3), and
driving while the privilege was suspended for driving with a specified blood
alcohol level and when she had knowledge of the suspension (count 4). The court instructed the jury in all the
elements of each offense; in all the requirements for aider and abettor
liability; that appellant was presumed innocent; and that “this presumption
require[d] that the People prove a defendant guilty beyond a reasonable
doubt.†The jury was also instructed to
“[p]ay careful attention to all of these instructions and consider them
together.†These instructions, together
with the challenged instruction, unambiguously placed the burden of proof
beyond a reasonable doubt on the prosecution on every element.
Appellant
contends that she is entitled to a jury verdict on all facts that are elements
of the crimes charged as opposed to alternate ways to commit the crime. She argues that, here, “the act of driving is
an element of vehicular manslaughter (§ 192, subd. (c)(1), (2) & (3))
and driving under the influence (Vehicle Code, § 23153, subd. (a), (b))
and so must be proven to the jury beyond a reasonable doubt.†Appellant relies on Schad v. Arizona (1991) 501 U.S. 624, in which the United States
Supreme Court upheld instructions permitting the jury to reach one unanimous
murder verdict based on various mental state findings pertaining to
premeditation or felony murder. (
which the court cautioned that a defendant has a due process right to
understand with specificity the charges against him, and that it is an
assumption of our criminal justice system that “no person may be punished
criminally save upon proof of some specific illegal conduct.†(Id.
at p. 632.) According to appellant,
“[i]f an individual juror was not sure that appellant was the driver of the
vehicle and not sure about whether she was an aider and abettor, then appellant
should not have been convicted.â€
We
disagree. As we have stated, the jury
reached a unanimous verdict against appellant for the
the influence charges. Appellant’s
contentions are unavailing under settled authority that as long as each juror
is convinced beyond a reasonable doubt that a defendant has committed an
offense, the jury need not decide unanimously as between several proffered
theories of liability. (
801 (Wilson); Russo, supra, 25 Cal.4th
at pp. 1132, 1133.) “Thus, the jury need
not decide unanimously whether a defendant was a direct perpetrator or an aider
and abettor, so long as it is unanimous that he was one or the other.†(Wilson,
supra, 44 Cal.4th at p. 801;
v. Santamaria, supra, 8 Cal.4th
at pp. 918-919.)
Appellant
also argues that the instruction encouraged the jury to find her guilty if she
engaged in conduct that comprised only one element of the charged crime, the
target crime, or aiding and abetting, without finding each and every element
beyond a reasonable doubt. Under this
approach, according to appellant, “the other occupants of the car could also
have been accomplices insofar as they all knew appellant was sitting on
Thompson’s lap and agreed to be driven under those circumstances.†Appellant bases her argument on
1364, 1369, in which the court concluded that if a codefendant engaged in
conduct that comprised one element of the charged crime, he was a perpetrator,
not an aider and abettor, and aiding and abetting instructions need not be
given. (Id. at p. 1371.)
name="_ftnref3" title="">[3] This ruling was rejected as unconstitutional
by the federal district court on habeas review.
(Cook v. Lamarque (E.D. Cal.
2002) 239 F.Supp.2d 985, 995.)
This
contention is meritless. The court
instructed the jury on the specific elements of aider and abettor liability,
that the People must prove each of the requirements, and that “[w]henever I
tell you the People must prove something, I mean they must prove it beyond a
reasonable doubt.†The court also
instructed on the elements of each of the underlying offenses. At no time did the court instruct the jury
that it could find appellant guilty without finding all the elements in a
particular offense true beyond a reasonable doubt. There was no evidence whatsoever that Jalisha
Harris and Everett Jackson specifically intended to, and did in fact, aid,
facilitate, promote, encourage, or instigate appellant’s commission of the
charged offenses.
Next,
appellant argues that the challenged instruction was improper because it
allowed the jury to convict appellant “on a single act without agreeing
unanimously on that act.†Relying on the
dissent in Culuko, appellant argues
that, although a jury need not unanimously determine whether a defendant was a
perpetrator or an aider and abettor of a single crime when more than one theory
of liability is presented, “unanimity is still required when the jurors could
disagree on which act constituting the charged crime was committed by the
defendant.†(Culuko, supra, 78
Cal.App.4th at pp. 342-343, dis. opn. of McKinster, P.J., and cases cited
therein.) Specifically, appellant
contends that appellant’s guilt was based on a single act, not a course of
conduct, and the jury could have disagreed on whether “only one of the
defendants [appellant or Thompson] was in control of the vehicle or if they
actually shared control.†Under the
challenged instruction, posits appellant, “the jury could have found both
defendants guilty as aiders and abettors without a single juror actually
finding that either defendant was the driver of the car.†Appellant also suggests the possibility that
appellant got into the front seat and “became unconscious while Thompson
drove,†in addition to the possibility that the jury could have found appellant
guilty without finding beyond a reasonable doubt that she acted with gross
negligence or intended to aid and abet a target crime.
These
contentions have no merit because the basis of liability here was not discrete
acts. It is settled that a unanimity
instruction is not required where the offenses are so closely connected as to
form a single transaction or where the offense itself consists of a continuous
course of conduct. (People v. Diedrich (1982) 31 Cal.3d 263, 282.) “ ‘ “This exception arises in two
contexts. The first is when the acts are
so closely connected that they form part of one and the same transaction, and
thus one offense. [Citations.] The second is when . . . the
statute contemplates a continuous course of conduct of a series of acts over a
period of time.
[Citation.]†’ †(
108, 115 (Napoles).)
As
one court has put it, the “continuous [course of] conduct†exception “ ‘is
quite limited. There is a fundamental
difference between a continuous crime spree and continuous conduct resulting in
one specific offense. The continuous
conduct exception only really applies, if at all, to those types of offenses
where the statute defining the crime may be interpreted as applying, on
occasion, to an offense which may be continuous in nature such as failure to
provide, child abuse, contributing to the delinquency of a minor, driving under
the influence and the like [citations].’ â€
(People v. Metheney (1984) 154
Cal.App.3d 555, 561.) The continuous
course of conduct exception, therefore, is “limited . . . to
those cases where the two or more criminal acts are closely connected in time
so that they form part of one transaction or the crime is the type of offense
which in itself consists of a
continuous course of conduct such as pandering, child abuse or contributing to
the delinquency of a minor.
[Citation.]†(
supra, 104 Cal.App.4th at pages
116-117, the People charged defendants with one count of felony child abuse,
occurring between two specific dates. In
concluding that the trial court erred in giving a unanimity instruction because
the offenses formed a continuous course of conduct, the court explained that
the charging language “alerts the jury that the charge consists of a continuous
course of conduct, to be proved by evidence of more than one individual
act. Thus, from the trial’s inception,
the jury was aware that this was not a case where one illegal act is charged
and several are proven—a case, in other words, requiring a special instruction
to protect the defendant’s right to a unanimous jury.†(Id.
at p. 117.) The court also pointed out
that the evidence presented at trial of “ ‘a systematic pattern of abuse rather
than separate, isolated incidents’ †(
course of conduct theory.
Here,
the evidence presented a course of conduct resulting in driving under the
influence offenses including gross vehicular manslaughter. The evidence did not present multiple
possible instances of these offenses; that is, there were not multiple acts of
gross vehicular manslaughter or driving under the influence, nor were there
multiple acts of driving.
Finally,
even if it was error to give the challenged instruction, any error was harmless
beyond a reasonable doubt. (
592, 602 [“An instructional error which creates an improper mandatory
presumption falls within the category of trial error subject to
the instructions as a whole and that the prosecution had the burden of proving
appellant’s guilt beyond a reasonable doubt.
The jury is presumed to have followed these instructions. (People
v. Mills (1991) 1 Cal.App.4th 898, 918 [presumption that jurors are
intelligent and capable of correlating all jury admonitions and instructions];
168, 179 [jury is presumed to have followed instructions and obeyed the law].)
The
evidence was overwhelming that appellant was guilty beyond a reasonable
doubt. Appellant was seen drinking on
several occasions throughout the day and evening. She drove the Lexus earlier in the evening to
drop off and then pick up Jalisha Harris and to pick up Damarcus Thompson and
Everett Jackson. Appellant sat on
Thompson’s lap in the driver’s seat on an approximately four mile drive which
included numerous turns and at least seven controlled intersections,
culminating in the crash. Appellant’s
blood-alcohol content within hours after the crash was recorded as .10 and .12
percent. The weight of the evidence
supports the finding that appellant drove while impaired in a reckless and
grossly negligent manner. In light of
the other instructions and the evidence, any error in giving the challenged
instruction was harmless beyond a reasonable doubt. (Chapman
v. California, supra, 386 U.S. at
p. 24.)
C. The Driving Instruction.
Appellant
contends the trial court erred in giving the following instruction based on
CALCRIM No. 2241: “A driver is a person
who drives or is in actual physical control of a vehicle. [¶] A
person drives a vehicle when he or she intentionally causes it to move by
exercising actual physical control over it.
The person must cause the vehicle to move, but the movement may be
slight.†The problem with this
instruction, according to appellant, is the phrase, “actual physical
control.†Under Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753 (
that the person driving was the one who intentionally caused the car to
move. Under this interpretation,
appellant continues, if appellant had her hands on the steering wheel but Thompson
had his foot on the accelerator and the brake, then it was Thompson who had
“actual physical control†and caused the car to move.
Appellant
is correct that “the jury should have been told that the person driving was the
same one who intentionally caused the car to move.†And the jury was so instructed, as is evident
from the quoted language above.
We
find the instruction is a correct statement of the law. First, it tracks the language of Vehicle Code
section 305, which provides in part: “A
‘driver’ is a person who drives or is in actual physical control of a
vehicle.â€
Second,
although “the term ‘drive’ is not defined in the Vehicle Code,†case law holds
“the term ‘drive’ means to steer or control a vehicle in motion.†(Padilla
v. Mease (1986) 184 Cal.App.3d 1022, 1027; see In re F.H. (2011) 192 Cal.App.4th 1465, 1472 [By grabbing the
wheel, which caused the vehicle to change directions and crash, the defendant
“displaced the driver’s control and operation of the vehicle and made herself
the driver as she exercised actual physical control over the vehicle.â€]);
defendants were driving the vehicle under the influence of alcohol where one
operated the steering wheel and the other operated the stick shift and pedals];
In re Queen T. (1993) 14 Cal.App.4th
1143, 1145 [The defendant’s “act of steering the car, although she was not
operating the accelerator or brakes, renders her a ‘driver’ within the meaning
of [Vehicle Code] sections 305 and 23153.â€].)
Finally,
the question posed in Mercer was a
narrow one, as the court itself articulated:
“We now turn to the essential question posed in this case, namely,
whether an officer may make a ‘lawful arrest’ for ‘drunk driving’ in violation
of section 23152[, subdivision] (a), if the arrestee’s vehicle is lawfully
parked and the officer has not observed the vehicle move.†(Mercer,
supra, 53 Cal.3d at p. 761.) We had occasion recently to discuss
“. . . Mercer was found by police asleep and slumped over
the wheel of a car legally parked, its engine running. (Mercer,
at p. 756.) He refused chemical tests
after his warrantless arrest for violation of section 23152. (Mercer,
at pp. 756-757.) The court extensively
analyzed the meaning of the term ‘drive’ to determine if Mercer was lawfully
arrested for a violation of section 23152 in the absence of evidence that the
arresting officer observed his vehicle move, so as to answer the ultimate
question of whether his driver’s license could be suspended or revoked by
statute because he refused the chemical tests.
(Mercer, at pp. 757-758.) In doing so, the court drew a distinction
between ‘drive’ and ‘operate.’ †(
emphasized the limited applicability of Mercer
when it stated, “[i]n Mercer, . . .
the issue was whether the ‘lawful arrest’ requirement of the implied consent
statute [citation] . . . had been met where, under the law then
in effect, the officer lacked statutory authority to effect a warrantless
misdemeanor arrest for a driving-while-under-the-influence offense that was not
committed in the officer’s direct presence.â€
(Troppman v. Valverde (2007)
40 Cal.4th 1121, 1136, fn. 11.)
narrow definition of driving. The
instruction as given was correct.
D. No Cumulative Prejudice.
Appellant
contends that the errors in this case cumulatively resulted in a trial that was
fundamentally unfair and that the combined prejudicial effect of all the errors
requires reversal. We disagree. None of the claimed errors actually
constitute errors, and thus there is no prejudice to cumulate.
E. Correction of the Sentence.
In
her reply brief,
title="">[4] appellant raises a
sentencing error that was brought to her attention by respondent. As to count 2, a subordinate offense, the
trial court imposed full-term sentences for two great bodily injury
enhancements under Penal Code section 12022.7, subdivision (a), and two multiple
injury enhancements under Vehicle Code section 23558. However, section 1170.1, subdivision (a),
provides that the subordinate term for each consecutive offense “shall include
one-third of the term imposed for any specific enhancements applicable to those
subordinate offenses.†Thus, the
full-term sentence enhancements on count 2 were unauthorized.
Appellant
requests that we remand the matter to the trial court with instructions to
impose one-third of the middle term on these enhancements on remand. Respondent contends that the proper remedy
would be to remand for resentencing. We
agree with respondent that the error requires a remand for resentencing. (See People
v. Rodriguez (2009) 47 Cal.4th 501, 509 [“remand will give the trial court
an opportunity to restructure its sentencing choicesâ€]; People v. Navarro (2007) 40 Cal.4th 668, 681 [“remand for a full
resentencing as to all counts is appropriate, so the trial court can exercise
its sentencing discretion in light of the changed circumstancesâ€].)
IV. DISPOSITION
The
sentence is vacated and the matter is remanded for resentencing on all
counts. In all other respects, the
judgment is affirmed.
_________________________
Haerle,
Acting P.J.
We concur:
_________________________
Lambden, J.
_________________________
Richman, J.
Appellant’s codefendant, Damarcus Thompson, was tried and convicted in the same
proceeding. His appeal is pending in
case number A133858.
arrest warrant was issued and Thompson was finally apprehended more than a year
and a half later, in March 2011.
